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Santa Clarita Elder Abuse Defense Attorneys

California Penal Code 368

California Penal Code 368 is the penal code section enacted to criminalize elder abuse. If you have been charged under California Penal Code 368, it is important that you hire an experienced criminal defense attorney, such as Daniel E. Kann, and that you know what the prosecution must prove in order to obtain a conviction of elder abuse under PC 368.

What must the prosecution prove to hold you criminally liable for mistreating the elderly under PC 368?

There are many ways to run afoul of Penal Code 368. In general, any person who willfully inflicts physical or emotional abuse, neglect or endangerment falsely imprisons and/or financially exploits an elderly person or dependent adult can be found guilty of elder abuse.1

Elder abuse includes the following examples:

Physical abuse

Physical abuse can include assault or battery, sexual battery, unreasonable physical constraint or prolonged deprivation of food or water, or inappropriately administering food or water.

Psychological abuse

Psychological abuse can include prolonged isolation, or intimidation through threats or harassment.

Neglect

Neglect can include the failure to assist in personal hygiene, in the provision of food, clothing or shelter. Failure to administer medications or to protect from health and safety hazards.

Financial Abuse

Financial abuse includes crimes such as taking real or personal property of the elderly through misappropriation, embezzlement, forgery, theft or fraud.

While financial exploitation and false imprisonment of the elderly are crimes with significant penalties2, the following article focuses on crimes involving physical and mental abuse or neglect. The specific elements of the crime that are required to convict someone of elder abuse depend on whether the alleged abuse is charged as a misdemeanor or felony.

For a misdemeanor conviction the prosecution must show the following:

  1. Defendant had knowledge that the victim was an elder or dependent adult. AND
  2. Defendant willfully causes or permits any elder or dependent to suffer, or inflicts thereon unjustifiable physical pain or mental suffering. OR
  3. Defendant, having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the victim to be injured. OR
  4. Defendant willfully causes or permits the victim to be placed in a situation in which his or her person or health is endangered. AND
  5. Defendant's conduct occurred under circumstances OTHER THAN those likely to produce great bodily harm or death.

For a felony conviction the prosecution must prove same elements as the misdemeanor crime, except for number 5 above. Instead, for a felony conviction the prosecution must show that Defendant's conduct occurred under circumstances likely to produce great bodily harm or death.3

The following is a more detailed explanation of the elements

Knowledge that the alleged victim is an elder or a dependent adult

Penal Code 368 defines elder as "any person who is 65 years of age or older."4 A dependent adult is defined by statute to include anyone between the ages of 18 and 64 years of age who has a mental or physical disability that prevents her from caring for herself.5 The prosecution must show that the defendant had actual knowledge or a reasonable belief that the victim is age 65 or older or of victim's dependent status.

What is willfully causes or permits?

Willful means that it was done willingly and on purpose6, as opposed to accidentally. Willful does not mean that the defendant intended the consequences of her act. The prosecution only has to show that the defendant intended to commit the act or the omission that that resulted in the harm.

As an example, if the defendant is the sole caretaker of his elderly father and he intentionally keeps his father's medication from this father, then the prosecution can show that his actions were willful. However, if the defendant was giving his father multiple prescriptions and accidently omitted one through error, the prosecution cannot show the defendant's actions were willful.

Even if the prosecution cannot show that your actions were willful, they can still obtain a conviction if they can show you were criminally negligent. To be criminally negligent, you have to "act in a way that is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act."7 However, it is important to note that you can only be criminally negligent if you have a duty act. For instance, if a caretaker at a nursing home is responsible for the care of an elderly resident and that caretaker fails to notify family or the medical staff of the elderly person's life threatening allergic reaction to a prescribed drug and continues to administer the prescription to the elderly resident, then that caretaker could be criminally negligent.

What is infliction of unjustifiable pain or suffering?

Unjustifiable pain or mental suffering "is pain or suffering that is not reasonably necessary or is excessive under the circumstances."8

What is great bodily injury for a felony elder abuse charge?

Great bodily injury means "significant or substantial injury" that is "greater than moderate or minor harm."9 The actual injury or potential injury must be more than trivial or insignificant.

What is the punishment if the prosecutor is able to convict a defendant under PC 368?

The punishment a defendant will receive under PC 368 depends on whether the prosecution charges the defendant with a misdemeanor or felony.10

Felony Conviction

If convicted under PC 368 as a felony, the defendant will face all or any of the following punishments:

  1. State imprisonment for two-four years, or
  2. Imprisonment in the county jail for up to a year, or
  3. Fines up to $6,000, or
  4. Both imprisonment and fines.11

If the victim suffers great bodily harm or death then the prison sentence is increased by three to seven years.12

In addition to the fines and prison time, the defendant faces all or any of the following matters:

  1. probation/parole
  2. restitution
  3. complete community service as ordered by the court,
  4. undergo any type of counseling services ordered by the court.

If convicted of a felony the defendant cannot possess guns, vote, serve on a jury or hold a public office.

Misdemeanor Conviction

If the defendant is convicted of a misdemeanor PC 368 he is subject to same fines as a felony conviction, but is only subject to up to one year in county jail.13 A defendant convicted of a misdemeanor PC 368 charge can also face informal probation, restitution, and counseling.

What are the defenses to California Penal Code 368?

An experienced attorney can assist you in mounting an effective defense against the charge of PC 368. There are many legal defenses to this charge and below are the most common:

Victim was not age 65 or defendant didn't know the victim was age 65 or older

Under Penal Code 368, the victim must be 65 or older at the time of the alleged abuse and the defendant must know that the victim of was at least age 65 year old at the time of the alleged abuse.14 If the victim is not age 65 you cannot be charged of this crime, unless the victim is a dependent adult. If the victim does not look age 65 and the defendant had no reason to believe the victim was at least age 65 then you cannot be convicted of elder abuse.

The injuries sustained by the victim were the result of an accident

As indicated previously, an element that the prosecution has to prove is that the defendant's conduct was willful. If the defendant accidentally injures the victim through no willful act of his own, then the accident serves as a defense to the crime of elder abuse.

The defendant was not criminally negligent

As previously mentioned if the victim was in your care or custody the prosecution must show that you willfully violated PC 368 or you were criminally negligent at the time the victim was injured.15 In order to prove criminal negligence the prosecution has to show that the defendant acted in a way that created a high likelihood of injury to the victim. If the victim was in the defendant's care or custody but the defendant was simply careless when the victim was injured, the defendant cannot be convicted. For example, suppose the defendant is caretaker at a nursing home and unintentionally knocks the elderly resident's leg on a bed post while transporting an elderly resident to from his wheel chair to his bed. The elderly resident suffers a broken leg. The injuries sustained by the victim were the result of carelessness, thus prosecution could not convict the defendant under PC 368.

The victim has falsely accused the defendant of the crime

It is far too common within domestic disputes that an alleged victim fabricates a charge of abuse against their caretaker in order to punish their caretaker or to get back at them. If the alleged victim is lying to the cops about being a victim of elder abuse, a thorough examination by the investigators used by the Law of Office of Daniel E. Kann as well an effective cross examination by skilled attorney Daniel E. Kann will expose the alleged victim's lies and serve as a complete defense to the charge.

The defendant acted in self defense or defense of another

In most physical disputes, there is a mutual struggle between both parties. If the defendant injures an elderly person after defending himself or another against an attack that was initiated by elderly victim, the defendant may be able to claim self defense under California's self defense laws.

Other Penal Codes Related to California Penal Code 368

The following offenses are related to PC 368:

Getting Proper Legal Help

After an arrest for elder abuse charges, sometimes finding the right attorney can be one of the most challenging steps to take. Daniel E. Kann has defended the rights of thousands of individuals throughout Los Angeles and Ventura counties. For a free consultation and to learn more about your case and whether it can be dismissed, call (888) 744-7730 today.


1 California Penal Code Section 368 "(b)(1) Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable …c) Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health may be endangered, is guilty of a misdemeanor…(d) Any person who is not a caretaker who violated any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, an who knows or reasonably should know that the victim is an elder or a dependent is punishable…(e) Any caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forger, or fraud, of who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult is punishable …(f) Any person who commits the false imprisonment of an elder or a dependent adult by the use of violence, menace, fraud or deceit is punishable…."

2 See California Penal Code Section 368 (d) and (e), which state the following "Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable as follows: (1) By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950). (2) By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950). (e) Any caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable as follows: (1) By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950). (2) By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950)."

3 California Penal Code Section 368 (b)(1)

4 See PC 368(g), "As used in this section, ‘elder' means any person who is 65 years of age or older."

5 PC 368 (h) states, "As used in this section, ‘dependent adult' means any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. ‘Dependent adult' includes any person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code."

6 Judicial Council of California Criminal Jury Instructions-CALCRIM No. 830.

7 CALCRIM No. 830

8 CALCRIM No. 830.

9 CALCRIM No. 830.

10 California Penal Code Section 368 is a wobbler, meaning that the prosecution has the discretion to charge it as a felony or a misdemeanor, depending upon the facts and allegations in the case.

11 See California Penal Code Section 368 (b)(1) "Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.

12 See PC 368(b)(2) & (3) "(2) If in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section12022.7, the defendant shall receive an additional term in the state prison as follows: (A) Three years if the victim is under 70 years of age. (B) Five years if the victim is 70 years of age or older. (3) If in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows: (A) Five years if the victim is under 70 years of age. (B) Seven years if the victim is 70 years of age or older."

13 See California Penal Code Section 368 (b)(1) "Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years… c) Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health may be endangered, is guilty of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment."

14 See footnote 3 and 12 above.

15 See footnote 6 above.

Kann California Defense Group

Daniel E. Kann has devoted his entire legal career exclusively to defending individuals facing criminal prosecution in Southern California. Dan fights criminal cases throughout Los Angeles, Ventura, Orange, Kern, Riverside and San Bernardino Counties.

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